slide #1 © copyright 2008 nan mckay & associates terry provance public housing denials and...

Slide #1 © Copyright 2008 Nan McKay & Associates

Terry Provance

Public Housing

Denials and Terminations

© Copyright 2008 Nan McKay & Associates


Welcome to Lunch N Learn!

Today’s Topics:• Denials and terminations in the public housing

program• VAWA protections• Screening and eviction final rule• Eviction notification requirements• Hearings (applicants & tenants)


Welcome to Lunch N Learn!

Upcoming topics:• 9/5/08: Occupancy Series

Reasonable Accommodation in the HCV Program – Emily Wilcox, Host

• 9/25/08: Management SeriesHow to Handle Hearings – Cara

Gillette, Host


Basic EligibilityRequirements


Requirements

PHAs may only admit eligible families to the program

This means that they must meet all HUD factors of eligibility


Requirements

HUD factors of eligibility• Must be a “family” by PHA definition• Must be income eligible• Must meet SSN, noncitizens rule, consent

form and other PHA requirements to supply information

• Must be suitable


Requirements

Standards for adults joining a resident family are the same as for applicant families• Must be suitable• Must meet SSN, noncitizen rule, consent form

and other PHA information requirements• Income eligibility is not redetermined for

resident families


Violence Against Women Reauthorization Act of 2005

(VAWA)


Denials

VAWA prohibits PHAs from denying admission to otherwise qualified applicants simply because they are, or have been, victims of domestic violence, dating violence, or stalking


Terminations

VAWA states that an incident or incidents of actual or threatened domestic violence, dating violence, or stalking• Will not be construed as a serious or repeated

violation of the lease by the victim or threatened victim

• Will not be good cause for terminating the tenancy or occupancy rights of the victim


Terminations

However, the PHA may terminate assistance to any individual who is a tenant or lawful occupant, and who engages in criminal acts of violence against family members or others


Terminations

A PHA may bifurcate a lease in order to evict any individual who is the perpetrator of such violence without evicting or otherwise penalizing the victim

Bifurcate means to split in two


Terminations

The authority to bifurcate the lease or otherwise remove someone is applicable to all existing leases• Specific bifurcation language isn’t necessary• Federal authority to bifurcate a lease takes

precedence over any federal, state, or local law to the contrary


Denials and Terminations

(Not Covered in Screening and Eviction Final Rule)


Mandatory Denials and Terminations

SSN requirements not met Family member fails to sign and submit

consent forms (both HUD and PHA forms) Family member fails to provide evidence of

citizenship or eligible immigration status Family fails to provide other necessary info


Mandatory Denials and Terminations

PHAs must terminate assistance for 24 months if a family allows an ineligible individual to reside in unit• If applies, must deny admission if still w/in the

24 mo• Doesn’t apply to prorated individuals in mixed

families


Mandatory Terminations

Considered “Other good cause” in regs:• Non-compliance with community service

Grounds for non-renewal of lease• Failure to accept offer of new lease


Allowable Denials and Terminations

May deny or terminate if family:• Engaged in or threatened abusive or violent

behavior towards PHA personnel• Any family member committed fraud, bribery

or any other corrupt, criminal act regarding any federal housing program


Allowable Denial

PHA may deny if:• Applicant owes rent or other amounts to the

PHA in connection with public housing or Section 8 programsCollection alternatives may be offered in lieu

of denial


Allowable Denial

PHA may deny due to:• Not meeting financial obligations, esp rent

Lack of credit history has no bearing on eligibility• Disturbing neighbors• Destroying property• Living or housekeeping habits adversely affecting

health, safety, or welfare of others


Allowable Terminations

For serious or repeated violations of lease• Failure to make payments due under lease• Failure to fulfill household obligations as

described in lease (24 CFR 966.4(f))• Being over income limit

Policy issue – not a lease requirementNot if under FSS contract or receiving EID



For other good cause, including but not limited to:• Criminal activity or alcohol abuse as defined in

lease (more on this later)• Discovery after admission of facts making

tenant ineligible…



Other good cause:• Discovery of false statements or fraud by

tenant in connection with application or reexamination of income


Screening and Eviction Final Rule


Screening & Eviction Rule: Introduction

Screening and Eviction Rule, eff 6/25/01• Provides means to deny applicants engaging in

illegal drug use or other criminal activity• Specifies criminal acts requiring denial or

terminationPHAs may still deny or terminate for other

criminal acts



The PHA MUST deny/terminate as required by regulations

The PHA MAY deny/terminate for other criminal activity• As described in the ACOP• Important for staff to know ACOP policies



Gave PHAs authority to obtain criminal conviction records from law enforcement• May have obtained through other means (MOU

with State/local law enforcement)May continue using other means ‘Other means’ not affected by Screening and

Eviction Rule requirementsNeed caution regarding confidentiality


Special Authority to Obtain Criminal Record

24 CFR 5.903• Authority to obtain criminal conviction records

from law enforcement agenciesMay be used to screen applicants, enforce lease

or evictMust have signed consent form from each adult

• Rules require law enforcement agency to provide copy of member’s criminal conviction record



24 CFR 5.903• PHA may only disclose criminal conviction

record info to those with a need to know• Penalties for non-compliance include

Conviction for misdemeanorFine up to $5,000Civil action by applicant



24 CFR 5.905• PHA must determine if any applicant is subject to

a State’s lifetime sex offender registration requirements Must check in state where housing is and any

state where members known to have residedState or local agency responsible for holding info

MUST provide to PHA upon request


Opportunity to Dispute

Prior to taking action based on info received under this authority, PHA must: • Notify applicant / tenant of proposed action• Provide copy of record to subject and

applicant / tenant• Provide opportunity to dispute accuracy &

relevance


Records Management

PHA system of records management must ensure records obtained under 24 CFR 5.903/5.905 are:• Maintained confidentially• Not misused or improperly disseminated


Records Management

PHA system of records management must ensure records obtained under 24 CFR 5.903/5.905 are:• Destroyed once purpose accomplished

Includes expiration of period for filing challenge to PHA action if challenge/litigation not instituted


Denials and Terminations under the Screening and

Eviction Final Rule


Household Members

Note that the regulations refer to actions by household members

HUD defines a household as the family and a PHA-approved live-in-aide (24 CFR 5.100)


Mandatory Denial and Termination

Must deny (permanently) or terminate immediately (required lease provision) if:• Any household member has ever been

convicted for manufacture or production of methamphetamine on premises of federally assisted housing


Mandatory Denial

Must deny if:• Any household member evicted from federally

assisted housing for drug-related criminal activity for 3 yrs from date of evictionDrug-related means illegal manufacture, sale,

distribution, or use of a drug, or possession with intent to manufacture, sell, distribute, use


Mandatory Denial

Persons evicted for drug-related criminal activity• PHA may waive (PHA policy) if:

• Successfully completed rehab• Circumstances no longer exist (e.g. death or

imprisonment)


Mandatory Denial

Must deny if:• Any household member currently engages in

illegal use of drugs or• Member’s illegal use or pattern of use may

threaten health, safety, peaceful enjoyment of the premises by other residents


Mandatory Denial

Must deny if:• Any household member’s abuse or pattern of

abuse of alcohol may threaten health, safety or peaceful enjoyment of premises by other residents.


Mandatory Denial

Must deny if:• Any household member is subject to lifetime sex

offender registration requirementProhibit if any member is subjectChecking Internet listings is OK


Allowable Denial

HUD does not prevent PHA from denying admission for criminal activity• Other than that specified in the rule or• Which has taken place at times other than

those specified• Must specify in ACOP


Allowable Termination Required Lease Provisions

PHA must provide for termination in the lease:• Abuse or pattern of abuse of alcohol that

threatens…• Illegal drug use or pattern of use that

threatens…• False or misleading info concerning alcohol

abuse or drug use, or rehabilitation



PHA must provide for termination in the lease:• Drug-related criminal activity by any tenant,

member of tenant’s household or guest on or off premises

• Such activity on premises by other person under tenant’s control



Definitions:• Guest – a person temporarily staying in unit with

consent of tenant or other member who has authority to consent

• Other person under tenant’s control – short term invitee on premises when activity in question occurredNot if present solely for legitimate commercial

purposes



PHA must provide for termination in the lease:• Criminal activity that threatens health, safety,

peaceful enjoyment of premises by other residents, PHA management/staff residing, and/or persons residing in immediate vicinity



Although required lease provisions, PHA is not mandated to evict in all situations.

Should consider circumstances (will discuss shortly)


Allowable TerminationsOptional Lease Provisions

PHA lease may provide for eviction of a tenant who is:• Fleeing to avoid prosecution, custody, or

confinement after felony conviction (also high misdemeanors in NJ)

• Violating condition of probation or parole


Evidence of Criminal Activity

The PHA may terminate for criminal activity if PHA determines the household member has engaged in the activity • Regardless of whether there has been an

arrest or convictionDetermination is based on preponderance of

evidence


Where PHA may deny or terminate, PHA may consider the:• Seriousness of the case

For denial, including the time and nature of the applicant’s conduct

• Extent of participation or culpability of individual family members

Consideration of Circumstances


PHA may consider:• Extent tenant has taken responsibility and has

taken steps to prevent or mitigateReasonable probability of favorable future

conduct• Effects of denial/termination on other

uninvolved family members• What purpose would denial/termination serve?



Consideration of Circumstances For household member no longer engaged in

illegal drug use or alcohol abuse, PHA may consider whether member:• Is participating in supervised drug or alcohol

program;• Has successfully completed a supervised drug or

alcohol program; or…



PHA may consider whether member:• Has otherwise been successfully rehabilitated

May require member to submit evidenceSpecial provisions (24 CFR 960.205) for

obtaining info from drug treatment facilities for applicants (PHA policy)

• Only to determine if currently using



The PHA may impose a requirement that culpable family members may not reside in the unit and provide assistance to the remaining members



PHA’s decision is subject to consideration of reasonable accommodation if family includes a person with disabilities• Actions must be consistent with fair housing & equal opportunity


Eviction and Notification Requirements


Eviction by Court Action

PHA may evict only by bringing court action…


How Tenant is Evicted

Unless State/local law permits eviction by administrative action• To evict without court action, tenant must be

given opportunity for a pre-eviction hearing


Lease Termination Notice Requirements

PHA shall give written notice of:• 14 calendar days for failure to pay rent• Reasonable time considering seriousness of

situation, not to exceed 30 days:When health or safety of other residents, PHA

employees or persons in immediate vicinity of premises is threatened



Reasonable (not to exceed 30 days) if:• Any member engaged in drug-related

criminal activity or violent criminal• If any member of household has been

convicted of a felony 30 days in any other case except if state or

local law allows shorter



Notice of lease terminations shall state:• Specific grounds for termination• Tenant’s right to make reply• Right to examine PHA documents directly

relevant to termination or eviction• Right to request a hearing



When PHA not required to give hearing, notice of lease termination must state: • Tenant not entitled to hearing• Entitled to due process in court• State whether the eviction is for:

Criminal activity that threatens… or Violent or drug-related criminal activity on or off the

premises



Notice to vacate required by state/local law:• May be combined with federal requirements,

or • May run concurrently with other lease

termination notice


Nondiscrimination Limitation

Actions carried out by PHAs relating to evictions must be consistent with fair housing and equal opportunity provisions of 24 CFR 5.105• Lists Federal mandatory references • PHA must treat protected classes same as

others


Notice to the Post Office

When PHA evicts an individual or family for criminal activity, PHA must notify local post office• Purpose:

PO will terminate delivery of mail Evicted persons will not return to the project to

pick up their mail


Informal Hearings for Applicants


Informal Hearings

PHA must provide prompt notice of denial of admission. Notice must:• Contain statement of reasons for decision• State that applicant may request informal

hearing• Describe how to obtain the hearing


Informal Hearings

Conducted by PHA designated person• Should not be person who made/approved decision,

or their subordinate (safe harbor) Provides applicant opportunity to present

objections After informal hearing, PHA should promptly notify

family in writing of final decision, with reasons


Grievance Hearingsfor Residents


Definitions

Grievance• Any dispute a tenant may have regarding PHA

action or failure to act in accordance with lease or PHA regulations which adversely affect tenant’s rights, duties, welfare or status

• We will focus on those grievances involving terminations


Definitions

Complainant • Any tenant whose grievance is presented

Elements of due process• Eviction action or termination of tenancy in

state/local court in which the following safeguards are required…..


Definitions

Elements of due process• Adequate notice to the tenant• Right of tenant to be represented by counsel• Opportunity for tenant to refute evidence,

including the right to confront or cross-examine witnesses & present defense

• A decision on the merits


Definitions

Hearing officer/panel • A person/panel selected to hear grievances and

render decisions Tenant – Adult person other than live-in aide

• Resides in unit & executed lease, or• Person residing in unit who is remaining head of

household of tenant family


Due Process States

In due process states, grievance procedures may be bypassed for:• Any criminal activity that threatens…• Any violent or drug-related criminal activity on

or near the premises• Any criminal activity that resulted in a felony

conviction of a household member


Grievance Procedures - Due Process States

In due process states:• May evict through judicial eviction procedures

without a PHA grievance hearing• If hearing not required, PHA must notify

the tenant HUD has determined that all states are now

due process states


Accommodation of Persons with Disabilities

PHA grievance procedure must provide reasonable accommodation• Could include qualified sign language

interpreters, accessible locations, and/or attendants

• Notices must be in accessible format if tenant visually impaired


Informal Settlement of Grievances

Grievances (oral/written) are presented by tenants to PHA or project office



Objective is to discuss informally Not required for expedited grievance

procedures, nor if PHA can/will bypass grievance process

PHA must send tenant a summary of discussion in reasonable time



Summary must specify• Names of participants• Dates of meeting• Proposed disposition of complaint• Reasons for decisions• Procedures for hearing if tenant not satisfied


Requesting Grievance Hearings

Tenant must submit written request to PHA within reasonable time• Request must specify reasons for hearing and

action or relief sought


Failure to Request Hearing

Informal grievance summary and/or eviction action final if tenant does not request a hearing

Failure to request hearing is not waiver of tenant’s right to contest action in court


Selection of Hearing Officer/Panel

Impartial party appointed by PHA, other than person who made/approved the PHA action, or their subordinate• Method stated in PHA grievance procedure• Tenant not precluded from being Hearing

Officer


Scheduling Hearings

Scheduled promptly at time & place convenient to both parties

Written notice provided to tenant & PHA official


Requesting a Transcript

Tenant or PHA may arrange in advance for a transcript of the hearing• Some PHAs record hearings on audio tape

as standard procedure Any interested party may purchase a

copy of the hearing transcript


Tenant’s Rights Opportunity to examine relevant PHA docs

• Includes relevant records/regs• Tenant has right to copy documents at own expense

If related to termination, PHA may not proceed with the eviction if docs not made available• Otherwise, PHA cannot rely on such docs not made

available for examination upon request Private hearing unless public hearing requested


Procedures Governing Grievance Hearings

Grievance hearings held before hearing officer or panel

If tenant or PHA representative does not appear hearing officer or panel may:• Postpone for up to 5 days• Decide missing party has waived right to hearing


Procedures Governing Grievance Hearings

Tenant has right to elements of due process Hearing conducted:

• Informally• Evidence received without regard to rules

applicable to judicial proceedings• Orderly


Decision of Hearing Official

Hearing official must give tenant & PHA written decision within reasonable time after hearing

PHA keeps copy in tenant file• Must keep copy w/names & identifying refs

deleted for prospective complainants, their reps, or hearing officials


Decision of Hearing Official

A decision favorable to the PHA does not waive the right of the tenant to pursue the matter through judicial proceedings


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